United States v. Milliron, 011121 FED6, 19-3720

Docket Nº:19-3720
Opinion Judge:RALPH B. GUY, JR., Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. William B. Milliron, Defendant-Appellant.
Attorney:Manuel B. Russ, Nashville, Tennessee, for Appellant. Ashley A. Futrell, UNITED STATES ATTORNEY'S OFFICE, Toledo, Ohio, for Appellee.
Judge Panel:Before: GUY, McKEAGUE, and LARSEN, Circuit Judges.
Case Date:January 11, 2021
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

United States of America, Plaintiff-Appellee,

v.

William B. Milliron, Defendant-Appellant.

No. 19-3720

United States Court of Appeals, Sixth Circuit

January 11, 2021

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:17-cr-00130-1-Jack Zouhary, District Judge.

ON BRIEF:

Manuel B. Russ, Nashville, Tennessee, for Appellant.

Ashley A. Futrell, UNITED STATES ATTORNEY'S OFFICE, Toledo, Ohio, for Appellee.

Before: GUY, McKEAGUE, and LARSEN, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant William B. Milliron crashed his mobile methamphetamine lab into a building after he led the U.S. Marshals and local police on a highspeed chase and threw Molotov cocktails at the pursuing vehicles. He pleaded guilty to several charges in exchange for the dismissal of the remaining charges. The district court sentenced Milliron to 110 months in prison (14 months above the Sentencing Guideline range). On appeal, Milliron attacks his plea agreement and challenges his sentence as procedurally and substantively unreasonable. We AFFIRM.

I.

In February 2017, members of the United States Marshals Service in Ohio were searching for Milliron based on an outstanding arrest warrant from Florida. The Marshals located Milliron driving his truck with a female passenger (later identified as his girlfriend). The Marshals turned on their sirens and lights in an attempt to stop Milliron. But Milliron did not stop. He led the Marshals and local police on a reckless 35-mile chase at speeds of up to 65 miles per hour.

During the chase, Milliron hurled glass bottles and other items toward the vehicles of the Marshals and local police. Milliron also attempted to ignite paper or fabric stuffed into plastic bottles filled with a liquid and then threw these makeshift Molotov cocktails at the vehicles pursuing him. At least one of these plastic bottles hit a police vehicle's windshield and its contents exploded, impairing visibility for the officer driving. Milliron later confessed that he threw these items at the pursuing vehicles to stop them from chasing him.

Milliron cut through parking lots and front yards, ignored red lights and stop signs, and swerved through traffic. Two Marshals in a truck approaching from the opposite direction saw Milliron driving erratically toward them and pulled to the side of the road. The chase eventually ended with Milliron hitting another vehicle and crashing his truck into a commercial building.

A search of Milliron's truck revealed that it was a mobile methamphetamine lab, containing several methamphetamine-related chemicals and paraphernalia. Two of the plastic bottles Milliron threw from his vehicle during the pursuit were recovered and tested. These "one-pot methamphetamine" bottles had a charred wick made of paper stuffed into the opening and contained flammable liquid and a combination of chemicals used to manufacture methamphetamine. Milliron also had thirteen rounds of live firearm ammunition in his pants pocket.

In a seven-count indictment, Milliron was charged with: (1) using a deadly or dangerous weapon to forcibly assault, resist, oppose, impede, intimidate, and interfere with federal officers performing their official duties, in violation of 18 U.S.C. § 111(a)(1) and (b);

(2) receipt or possession of a firearm (i.e., a "destructive device") as defined in 26 U.S.C. § 5845(a) and (f), which was not registered to him, in violation of 26 U.S.C. § 5861(d);

(3) carrying and using a firearm (i.e., a "destructive device"), during and in relation to a crime of violence (i.e., "assault of a federal officer, and those assisting [f]ederal [o]fficers in the performance of their official duties"), in violation of 18 U.S.C. § 924(c)(1)(A) and (B)(ii);

(4) possession of equipment or products which may be used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6) and (d)(2);

(5) intent to manufacture approximately 4.7 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C);

(6) possession with intent to distribute 4.7 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C);

(7) being a felon-in-possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).

Although Milliron initially pleaded not guilty, he later changed his plea. Pursuant to a written plea agreement, Milliron pleaded guilty to Counts 1, 4, 5, and 7, and waived certain rights. In exchange, the government agreed to dismiss the other counts after sentencing.

Nearly five months later Milliron filed a motion to withdraw his guilty plea, in which "counsel acknowledge[d] that his representation . . . was deficient" because he had failed to explain that a conviction under 18 U.S.C. § 111(b) "requires that the defendant intended to cause injury." The district court denied the motion after analyzing it in terms of an ineffective-assistance-of-counsel claim.

In the presentence report (PSR), the Probation Office calculated Milliron's combined adjusted offense level as 25. This calculation included two sentencing enhancements relevant to this appeal: (1) a two-level offense enhancement for possessing a "dangerous weapon," USSG § 2D1.1(b)(1); and (2) a three-level offense enhancement because "a dangerous weapon (including a firearm) was possessed and its use was threatened," USSG § 2A2.4(b)(1)(B). After a three-level reduction for acceptance of responsibility, Milliron's final offense level was 22. Milliron's offense level, combined with his Criminal History Category of V, yielded an advisory Sentencing Guideline range of 77 to 96 months of imprisonment.

At sentencing, the district court calculated Miliron's sentencing range consistent with the PSR. The court ultimately varied 14 months above the high-end of the range and sentenced Milliron to a total of 110 months of imprisonment. This timely appeal followed.

II.

As a threshold matter, Milliron contends that the district court abused its discretion by applying the incorrect legal standard in denying his motion to withdraw his guilty plea. The government maintains, however, that Milliron's appellate waiver bars review of this issue. We agree.

It is axiomatic that as part of a valid plea agreement, criminal defendants may "waive many of [their] most fundamental" legal rights, including their right to appeal. United States v. Mezzanatto, 513 U.S. 196, 201 (1995); see also Class v. United States, 138 S.Ct. 798, 804-05 (2018). A waiver provision is binding and forecloses appellate review if (1) the defendant's claim falls within the scope of the appeal waiver provision; and (2) the defendant "knowingly and voluntarily" agreed to the plea agreement and waiver. See United States v. Toth, 668 F.3d 374, 377-78 (6th Cir. 2012). Both requirements are met here.

A.

Milliron makes no effort to contest the first requirement. Notwithstanding that fact, the appeal waiver provision in question covers Milliron's plea withdrawal claim. Whether a claim raised on appeal falls within the scope of an appellate waiver is a question we review de novo, United States v. Griffin, 854 F.3d 911, 914 (6th Cir. 2017), applying "ordinary contract law principles and constru[ing] any ambiguities against the government," United States v. Fowler, 956 F.3d 431, 436 (6th Cir. 2020). The analysis here is simplified, however, as this court has firmly established that where a plea agreement states that the defendant waives the right to challenge their "conviction" on direct appeal, "an appeal of the denial of a motion to withdraw a guilty plea is an attack on the conviction" and is therefore "subject to [the] appeal waiver provision." Toth, 668 F.3d at 378-79 (emphasis added); United States v. Detloff, 794 F.3d 588, 592 (6th Cir. 2015). This is true even when the appellate waiver "does not mention" plea withdrawal claims. Toth, 668 F.3d at 378.

As in Toth, under the appeal waiver provision in this case, Milliron waived his right to "appeal the sentence or conviction." Milliron only "reserve[d] the right to appeal" the four claims "specifically" referenced in the waiver provision, but a plea withdrawal claim is not one of them.1 Because Milliron's plea withdrawal claim falls within the scope of the appeal waiver provision, only challenges to the validity of the plea agreement and the appeal waiver therein will be entertained. See Detloff, 794 F.3d at 592.2

B.

The plea agreement and appeal waiver in this case are valid. A defendant's plea agreement and related waivers are valid if made "voluntarily, knowingly, and intelligently, 'with sufficient awareness of the relevant circumstances and likely consequences.'" Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). Milliron argues only that his guilty plea was not "knowing or intelligent" because he pleaded guilty to violating 18 U.S.C. § 111(a)(1) and (b) "without the requisite knowledge that, in order [to] be [found] guilty of the offense," the government must prove "that he had used [a deadly or dangerous weapon] with the intent to cause bodily injury." Were it true that neither the court nor his counsel informed him of the "essential elements of the crime," Milliron's plea and related waivers would be "constitutionally invalid." Bousley v. United States, 523 U.S. 614, 618-19 (1998); Stumpf, 545 U.S. at 183. But that is not the case here.

Milliron's argument hangs on a misreading of § 111(a)(1) and (b).3 The text of "Section 111(a)(1) contains four distinct elements; the government must show that the defendant: (1) forcibly (2) assaulted, resisted, opposed, impeded, intimidated, or interfered with (3) a federal officer (4) in the performance of his duties." United States...

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